Irac of Negligence free essay sample

Introduction: In Rebecca ‘Zorba’s’ Restaurant case, the main issue is whether negligence exists of the defendant? There are three prerequisites must be present before the tort of negligence can arise: a duty of care must be owed by one person to another; there must be a breach of that duty of care; and damage must have been suffered as a result of the breach of duty. (FoBL, 2005, p70) In addition, another element must be satisfied to prove negligence is the causation. This essay will analysis Rebecca v. ‘Zorba’s’ with these four issues. IRAC Process No. 1Does ‘Zorba’s’ Restaurant own a duty of care to Rebecca Disasteropoulos? There are two common factors that must exist before the law says a duty of care exists, which are foreseeability and proximity. Firstly, in discussing the incidence of a duty of care, a historical case that defines the ‘neighbour principle’ must be taken into account – the case of Donoghue v. We will write a custom essay sample on Irac of Negligence or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page Stevenson[1]. The decision of this case developed a principle which has become known as the ‘neighbor principle’ by Lord Atkin that the neighbor means the closely and directly person by another’s act. FoBL, 2005, p68) Secondly, it must be foreseeable that the omission of the defendant could cause harm to the plaintiff. An objective test is used through the question, whether a reasonable person would foresee the damage occurring from the defendant. According to the case of Hay or Bourhill v. Young[2], it is not necessary to foresee the actual damage that will occur. It is enough if it can be shown that some types of damage could arise as a result of the defendant’s conduct. (FoBL, 2005, p68) In addition, proximity that requires care to be taken must exist.Proximity involves the notion of nearness or closeness and embrace physical proximity between the person or property of the plaintiff and the person and property of the defendant†¦causal proximity in the sense of closeness or directness of the relationship between the particular act or cause and the injury sustained† (Deana J. Jaensch v. Coffey)[3]. According to the case of Donoghue v. Stevenson[4], even there is no contractual relationship between these two parties, a duty of care still exists.Thus it can be seen that the duty of care will be owed because the action of the restaurant that they did not remove all the liquid from the floor has already affected the harm to their customers, and the relationship between Rebecca and the restaurant is the suppliers of services and customers. ‘Zorba’s’ Restaurant will be liable to compensate Rebecca if the duty of care is breached. IRAC Process No. 2 Is the duty of care breached by the defendant, ‘Zorba’s’ Restaurant? The second element required to prove negligence is that a duty of care has been breached.There are four factors must be taken in to account to determine whether there has been a breach, which are likelihood of injury, gravity of injury, if injury did occur, amount of effort required to remove the risk of injury and social utility of the defendant’s conduct. (Fo BL, 2005, p75) In the first place, the likelihood of injury is the degree of the risk of damage. According to the case of Bolton v. Stone[5], it was a slight possibility of harm, so the court held that the defendant was not liable for damages. This decision was explained by Lord Red of the Privy Council. FoBL, 2005, p75) However, some cases may not be ignored, like the case of Rebecca v. ‘Zorba’s’ Restaurant. Secondly, the gravity of injury must be relevant. ‘If the activity in which the plaintiff is engaged is particularly dangerous, this requires warning. ’ (FoBL, 2005, p75) According to the case of Waverley Municipal Council v. Swain[6], the defendant failed to warn the plaintiff that his activity has an occurred risk, which led the plaintiff to become a quadriplegic. And the court decided that was a negligent.In addition, the third element is the amount of effort that would be required to eliminate the risk. ‘If it is relatively easy to remove the risk and would cause little expense and inconvenience, then this may be required a breach of a duty of care. ’ (FoBL, 2005, p76), the case of Woods v. Multi-Sport Holdings Pty Ltd[7] could prove this element. The last factor is the social utility of the defendant’s conduct, which means the benefit of conduct must be assessed against the gravity of the risk of injury; the case of Watt v. Herfordshire[8] case set an example to this factor.In this case, there is no relevance to this factor. As a result, the supplier of ‘Zorba’s’ Restaurant did not conduct the sufficient action to remove the potential risk to the customers, and the restaurant did not put any warning like notice board to admonish their customer, it is most likely that the restaurant had been breached of the duty of care. IRAC Process No. 3 Does the defendant’s breach of duty cause the loss sustained by the plaintiff? The third element that must be satisfied to prove negligence is the causation of the damage.To determine the issue of causation, the law has created a test called ‘but for’ by Lord Denning in the case of Cork v. Kirby Maclean Ltd[9], ‘If you can say that the damage would not have happened but for a particular fault, then that fault is in fact a cause of the damage; but if you can say that the damage would have happened just the same, fault or no fault, then the fault is no a cause of the damage. ’ (FoBL, 2005, p78) In this case, the injury of Rebecca was caused by the lack of care of the restaurant.The waiter did not remove all the liquid off from the dance floor, this action lead to Rebecca’s damage. So the negligence of the defendant is the causation for the breach of duty of care. IRAC Process No. 4 Is there any defenses can be rise? There are two defences to an action in negligence: contributory negligence and voluntary assumption of risk. (FoBL, 2005, p83) This case only involves contributory negligence. According to section 26 of the Wrongs Act 1958 (Vic. ), the result of a successful plea of contributory negligence will be an apportionment of damages.So, if a defendant is a negligent without any contributory negligence by the plaintiff, the plaintiff will receive 100 per cent of the damage, but if the plaintiff is held to be contributory negligent to the extent of 40 per cent, then the plaintiff will only receive 60 per cent of the damage. (FoBL, 2005, p84) For instance, the case of Liftronic Pty Ltd v. Unver[10], the defendant (Liftronic Pty Ltd) was found liable in negligence but Unver’s damages were reduced by 60 per cent due to his contributory negligence. In this case, Rebecca had seen the waiter wiping the floor, and assumed that all of the moisture had been cleared away.Then she did not ask the waiter about the damp floor, continue to dance vigorously. Therefore, the defendant could apportion part of damages by contributory negligence. Conclusion: To sum up, based on the law of negligence, the issues and precedents, Rebecca could win this case by legal process. Because the defendant ‘Zorba’s’ Restaurant owns a duty of care to Rebecca, the restaurant has breached that duty of care; and Rebecca suffered damages as a result of ‘Zorba’s’ Restaurant’s breach of her duty of care. However, the plaintiff – Rebecca Disasteropoulos also held partly to blame her negligence.